Thursday, December 20, 2012

Quota on Promotions for SCs/STs: 117th Constitution Amendment Bill

The 117th Constitution Amendment Bill has failed to define low representation of SCs/STs which is necessary to make reservation in promotions possible

There is certainly a strong argument to be made in favour of reservation for the Scheduled Castes and the Scheduled Tribes in promotions but the 117th Constitution Amendment Bill that was passed in the Rajya Sabha is a poor attempt at achieving that goal.

Article 16(4A) of the Constitution permits reservation in promotion posts for the SCs/STs but Supreme Court judgments have imposed certain conditions for the state to exercise its power under this provision. The original draft of the 117th Constitution Amendment Bill sought to amend Article 16(4A) to influence the constitutional discourse on three critical aspects of the debate on quotas in promotions — determining the backwardness of SC/ST beneficiaries; impact on efficiency; and empirical data to establish the lack of representation of the SCs/STs in promotion posts.

Although political negotiation between the UPA government and the BJP resulted in the agreement to drop the provision in the Bill that would permit the state to ignore concerns of efficiency, the position that the state need not demonstrate the inadequacy of representation whatsoever is constitutionally suspect.

Backwardness of beneficiaries

Through a rather erroneous decision in M. Nagaraj v. Union of India, the Supreme Court required the state to demonstrate the backwardness of SC/ST beneficiaries each time quotas in promotions were provided for under Article 16(4A). To appreciate the error of the Supreme Court in Nagaraj, it is important to understand the difference in the constitutional status of the SCs/STs and Other Backward Classes (OBCs). After the judgment in Indra Sawhney v. Union of India, individuals in the 'creamy layer' of OBCs could not be the beneficiaries of the reservation policy. However, the Supreme Court in Indra Sawhney explicitly held that no such exclusion would be applicable to the SCs/STs. The reasons for applying the concept of 'creamy layer' only to the OBCs and not to the SCc/STs could be debated but the difference in treatment is due to the composition of groups and the nature of marginalisation they suffer from. Therefore, the Supreme Court's suggestion in Nagaraj that the SC/ST beneficiaries of quotas in promotions must be 'backward' is without constitutional merit. The constitutional position is that all SCs/STs are deemed to be backward and there cannot be a further determination of 'backwardness' among them. The 117th Constitution Amendment Bill rightly seeks to do away with the confusion created by the judgment in Nagaraj by clarifying that all SCs/STs are deemed to be backward.

The main focus of Article 335 of the Constitution is the requirement of the state to acknowledge the claims of the SCs/STs while 'making appointments to posts and services'. However, Article 335 also states that the acknowledgement of such claims shall be consistent with the concerns of efficiency. However, judgments of the Supreme Court have used this provision to strongly suggest, without any real supporting arguments, that reservation and efficiency necessarily pull in different directions. Though the provision permitting the state to provide reservation in employment finds mention in the Fundamental Rights chapter of the Constitution and Article 335 is in the chapter on Special Provisions Relating to Certain Classes, the Supreme Court has used Article 335 to check the power of Parliament to provide reservation in promotions even while it is exercising its power to amend the Constitution. Adjudicating on the validity of three constitutional amendments providing for reservation in promotions with consequential seniority, the Supreme Court in Nagaraj (2006) held that the state could exercise its power under these amendments only if it could demonstrate that efficiency continued to be maintained. The Supreme Court did not clarify the precise content of such a requirement.

Concerns of efficiency lie at the heart of objections to quotas in promotion. The BJP articulated such a concern with the text of the 117th Constitution Amendment Bill by making its support contingent on the government agreeing to drop the words "nothing in Article 335 shall prevent the state from making any provision for reservation in matters of promotion". Article 335 has a rather complex constitutional history. In the Constituent Assembly, it originated as a provision to acknowledge the claims of all 'minorities' when the initial sentiment was not to provide reservation in public employment. Instead of providing reservation in public employment, it was agreed to put in a weak provision that acknowledged the claims of minorities consistent with concerns of efficiency. However, all of that changed in the proceedings of the Constituent Assembly after December 1949. In a clear response to the violence of Partition, the term 'minorities' was dropped and the provision subsequently acknowledged only the claims of the SCs/STs. Reservation in employment was then permitted for 'backward classes' under Article 16(4) but not for the 'minorities'. Article 335's origin was, therefore, in a context where reservation was not contemplated for public employment. The central role it has come to play in contemporary constitutional discourse on reservation in public employment is rather puzzling.

The empirical battle

Article 16(4A) as it currently stands permits the state to provide reservation in promotions on the condition that the SCs/STs are "not adequately represented in the services under the state."

It is on the meaning of this condition that the disagreement between the Supreme Court and governments seeking to provide quotas in promotions is at its most intense. Through the 77th, 81st, 82nd and 85th Constitution Amendment Acts (between 1995 and 2001), Article 16(4A) was inserted and amended to give the state power to provide quotas in promotions with consequential seniority. One of the conditions imposed by the Supreme Court in Nagaraj while upholding the constitutionality of these amendments was that every time a government sought to exercise its power under Article 16(4A), it must take up a specific exercise to demonstrate that the SCs/STs were not adequately represented. It was in Suraj Bhan Meena v. State of Rajasthan (2010) that the Supreme Court first struck down an attempt by a State government to provide quotas in promotions on the ground that it had not undertaken such a specific exercise to establish the inadequacy of representation of the SC/STs. The genesis of the 117th Constitution Amendment Bill can be traced to the Supreme Court's judgment in U.P. Power Corporation Ltd. v. Rajesh Kumar (April 2012), which struck down Uttar Pradesh's attempt to provide quotas in promotions on grounds similar to those in Suraj Bhan Meena.

Short-sighted

The draft of the 117th Constitution Amendment Bill has a rather short-sighted response to the Supreme Court's demand that the inadequacy of representation of the SCs/STs must be demonstrated on the basis of each cadre. In essence, the Supreme Court's position is that if the state wants to provide quotas in promotions for clerks, it should demonstrate inadequate representation of the SCs/STs among clerks . The response of the 117th Constitution Amendment Bill is to remove any reference to the requirement of demonstrating inadequacy of representation. The Supreme Court's demand that the cadre must be the basis for demonstrating inadequacy of representation is far from ideal. A cadre-based determination of inadequacy of representation of the SC/STs would not result in an accurate picture of representation of the SC/STs in public employment as a whole. The 117th Constitution Amendment Bill should have clarified that a cadre-based determination of inadequacy of representation was not required by the Constitution and that it would be sufficient for the State to demonstrate inadequacy of representation in public employment as a whole. Instead, the Bill that has been passed in the Rajya Sabha goes to the other extreme and no longer requires the state to demonstrate any sort of inadequacy of representation.

Even if the Bill does go through the Lok Sabha, it is very likely to be challenged in the Supreme Court where it will be tested for violation of the basic structure of the Constitution. The demand to do away with the requirement of 'inadequacy of representation' was specifically debated in the Constituent Assembly and rejected. The Constituent Assembly rejected the demand because it believed it would give the state unacceptable power in terms of determining the beneficiaries in the context of the general equality protection within the Constitution. Removing the requirement to establish inadequate representation of the SCs/STs would certainly make it easier for the state to provide quotas in promotions but it goes against the fundamental principle on which the decision to provide reservation in employment was based. All those clichés about learning from history might come back to haunt this constitutional amendment when the Supreme Court decides upon its validity.

(Anup Surendranath is an Assistant Professor of Law, National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford)

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